Giuffre v. Marys Lake Lodge, LLC

Filing 144

ORDER. Defendant Marys Lake Lodge, LLC's motion for summary judgment 64 is granted. Marys Lake Lodge, LLC is entitled to summary judgment on plaintiff's claims relating to the tip sharing requirements and notice of the tip credit. Plaintiff's overtime and breach of contract claims survive. Plaintiff's motion for class certification of his state law claims 43 is denied as moot. By Judge Philip A. Brimmer on 9/28/12.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00028-PAB-KLM
(consolidated with Civil Action No. 12-cv-00377-PAB)
DARREN GIUFFRE, on behalf of himself and all similarly situated persons,
Plaintiff,
v.
MARYS LAKE LODGE, LLC, a Colorado Limited Liability Company, and
RAMS HORN DEVELOPMENT COMPANY, LLC, doing business as
Marys Lake Lodge, a Colorado Limited Liability Company,
Defendants.

ORDER

Plaintiff is a former server in a restaurant operated by defendant Marys Lake
Lodge, LLC (“MLL”) in Estes Park, Colorado. While working for MLL, plaintiff was
required to share a portion of his tips with the person, often a manager, filling the
position of “expeditor.” Plaintiff alleges that this requirement violated federal and state
wage laws and constituted a breach of contract. Moreover, plaintiff contends that MLL
failed to provide him with notice that it intended to take a “tip credit,” i.e., pay him less
than minimum wage in light of the receipt of tips.
The matter comes before the Court on MLL’s motion for summary judgment
[Docket No. 64]. The motion is fully briefed and ripe for disposition.
I. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and
preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
II. DISCUSSION
The Fair Labor Standards Act (“FLSA”), see 29 U.S.C. § 201 et seq., permits an
employer to pay a wage less than the federal minimum wage to “tipped employees”
under certain circumstances. See 29 U.S.C. § 203(m).1 To take this so-called “tip
credit” against the minimum wage, the employee must be “engaged in an occupation in
which he customarily and regularly receives more than $30 a month in tips.” 29 U.S.C.
§ 203(t). Furthermore, the employee must have “been informed by the employer of the

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Plaintiff also asserts claims pursuant to parallel provisions arising under
Colorado law. See, e.g., Colorado Wage Claim Act, Colo. Rev. Stat. § 8-4-101, et seq.;
Colorado Minimum Wage Act, Colo. Rev. Stat. § 8-6-101, et seq.
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provisions of this subsection.” 29 U.S.C. § 203(m); see Koellhoffer v. Plotke-Giordani,
--- F. Supp. 2d ----, 2012 WL 846670, at *8 (D. Colo. March 12, 2012) (“To be eligible
for the tip credit, the employer must first notify the employees of the requirements of the
law regarding minimum wages and of the employer’s intention to take the tip credit.”).
Finally, an employer may require an employee to “pool” or share tips with other
“employees” so long as those employees “customarily and regularly receive tips.” 29
U.S.C. § 203(m). Plaintiff contends that he (1) was required to share tips with
employees who did not “customarily and regularly receive tips” as well as with his
“employer” and (2) was not notified of MLL’s intention to take the tip credit.
A. Tip Sharing
MLL utilized the expeditor position on busy nights to assist in its restaurant.
Defendants contend that the expeditor is a “front of the house” position that falls within
the definition of a “tipped employee” for purposes of the FLSA, thus barring plaintiff’s
claim that the tip credit is invalidated by the sharing requirement. See Roussell v.
Brinker Int’l, Inc., 441 F. App’x 222, 231 (5th Cir. 2011) (“Customarily,
front-of-the-house staff like servers and bartenders receive tips. Back-of-the-house
staff like cooks and dishwashers do not, and thus cannot participate in a mandatory tip
pool.”). In arguing about whether the expeditor could share in tips, the parties focus on
the position’s level of interaction with customers. See id. (“Direct customer interaction
is relevant because it is one of the factors distinguishing these two categories of
workers.”); see Townsend v. BG-Meridian, Inc., 2005 WL 2978899, at *6 (W.D. Okla.
Nov. 7, 2005) (“The cases that have considered whether a given occupation falls within

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the definition of a tipped employee have focused on the level of customer interaction
involved in that occupation.”).
Plaintiff admits that, during the time he worked at MLL, the expeditor position
was usually filled by Mikilynn Wollett. See Docket No. 64 at 3, ¶ 8; Docket No. 92 at 3,
¶ 8. Ms. Wollett descibes the expeditor as a “front of the house” position with the
following responsibilities: “checking the plates as they come out from the kitchen cooks
to make sure they match the tickets; placing the food on the serving trays; taking the
serving trays to the tables and delivering the food to customers; checking in with
customers about their meals and exchanging food if the customer has [a] complaint;
refilling beverages; chatting with customers; and assisting the wait staff in any other
way necessary.” Docket No. 64 -1 at 2, ¶¶ 1-2. According to Ms. Wollett, the “position
is very similar to that of a waiter, and the attire is nearly identical, but the expeditor/food
runner does not take the customers’ orders.” Id. at 1, ¶ 2.
Plaintiff does not dispute that, if this is an accurate description of the expeditor
position, he would not be able to proceed with his claim based on impermissible tip
sharing. In response to MLL’s motion, however, plaintiff describes the position’s
responsibilities differently than Ms. Wollett. He declares that he worked “numerous
times” with individuals working as the expeditor and, “at various times, . . . was asked to
serve as the expeditor.” Docket No. 92-1 at 3, ¶ 4. From that experience, plaintiff avers
that the “expeditor would stand in the kitchen, separated from customers, and check
food quality on plates, make sure the order matched the ticket and place food on trays.”
Id. at 3, ¶ 6; see id. at 3-4, ¶ 6 (“In effect, the expeditor was in charge of quality control
over food before it was picked up by servers and delivered to customers.”). According
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to plaintiff, the expeditor also “served as a liason [sic] between the servers and the
other kitchen staff,” but had no responsibility for delivering food to tables or interacting
with customers. Id. at 4, ¶ 6. In light of this “back of the house” role, plaintiff contends
that the expeditor was not required to wear the server uniform. See id. at 4, ¶ 7.
In reply, MLL supplied the affidavit of Elizanne Smit-Inman who served as
plaintiff’s “direct supervisor every time he was employed as a server in MLL’s
restaurant.” Docket No. 94-1 at 2, ¶ 1. Ms. Smit-Inman was responsible for scheduling
“front of the house” employees and would include the expeditor in such schedules. She
states that the expeditor position “was only ever filled by front of the house employees,
and typically on a rotating basis.” See Docket No. 94-1 at 3, ¶ 4; see also Docket No.
94-3 (“front of the house” staffing schedules). Ms. Smit-Inman describes the position as
having the same responsibilities described by Ms. Wollett. See id. at 4, ¶ 6. She
further avers that the expeditor “never stood in the kitchen” and, like other servers, was
“not allowed ‘behind the line’ where the kitchen staff cooked.” Id. (“When the
expeditor/food runner was not delivering food to tables, the expeditor/food runner stood
in the Wait Station where all servers went to pick up their dishes to bring to
customers.”). MLL also supplied the affidavit of Marc Grandmaison, who states that he
“created the expeditor/food runner position at [MLL] in 2005.” Docket No. 94-2 at 3,
¶ 2. He contends that the expeditor/food runner position has always been “front of the
house,” to assist wait staff in getting food to customers faster. See id. at 3, ¶¶ 3, 4.
Furthermore, MLL points out that the record includes server schedules indicating that
the expeditor/food runner position “was only filled by front of the house employees.”

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Docket No. 94 at 7. See Docket No. 94-3; see also Docket No. 94-4 (separate
schedule for “culinary staff”).
After MLL submitted this additional evidence, plaintiff filed a surreply to which he
attached a “Supplemental Declaration.” Docket No. 143-1. In this declaration, plaintiff
qualifies his description of the expeditor position by stating that he does “not recall ever
seeing an expeditor deliver food to customers, check in with customers or otherwise
deal with customers.” Id. at 3, ¶ 6 (“If it ever happened, it was an anomaly.”). In regard
to the position’s role vis a vis waitstaff, he asserts somewhat vaguely that, after
arranging food on trays and checking the food quality, expeditors “then arranged for
servers to deliver the food to tables.” Id.
The Court finds, based on the foregoing, that plaintiff has failed to identify a
genuine dispute of material fact. Plaintiff relies exclusively on his own uncorroborated
declarations, the latter of which qualifies his descriptions of the expeditor position.
Plaintiff’s declarations are insufficient to survive summary judgment. See also Gottlieb
v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (non-movant is not permitted to
“rely[] on the allegations in his [or her] pleadings, conclusory statements, or on ‘mere
assertions that affidavits supporting the motion are not credible’”) (internal citations
omitted). Although a non-movant’s testimony based on personal knowledge need not
necessarily be corroborated to raise a genuine dispute of fact, see Berry v. Chicago
Transit Authority, 618 F.3d 688, 691 (7th Cir. 2010),2 the Court finds that plaintiff’s
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See also Sirovatka v. Budget Control Services, Inc., No. 10-cv-03028-PABCBS, 2012 WL 602658, at *3 (D. Colo. Feb. 24, 2012) (where this Court stated that
defendant failed to “persuasively explain why, in light of the nature of this particular
factual issue, the testimony of plaintiff regarding the substance of a two-person
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evolving and increasingly vague description of the position does not constitute anything
more than a mere “scintilla of evidence,” which “is insufficient to create a dispute of fact
that is ‘genuine.’” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
Plaintiff, who seeks to represent a class of similarly situated MLL employees, see
Docket No. 43, submits no corroborating evidence describing the expeditor in the
manner that he does. See Roberts v. Fairfax County Public Schools, --- F. Supp. 2d
----, 2012 WL 380130, at *5 (E.D. Va. Feb. 6, 2012) (finding plaintiff’s contentions
constituted a “mere . . . scintilla” of evidence where, “[d]espite [his] deposition testimony
that there were witnesses to [the] conduct, the Plaintiff has not put forth a single verified
statement from any witness who supports [plaintiff’s] recollection” and, “[i]ndeed, every
declaration . . . support[ed] [defendant]”) (citing, inter alia, D’Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 1998) (to avoid summary judgment, the nonmoving party
“must offer some hard evidence that its version of the events in question is not wholly
fanciful”).3 “Undoubtedly, credibility determinations are within the province of the jury
and it is not the role of the Court ‘to weigh the evidence, to count how many affidavits
favor the plaintiff and how many oppose [her], or to disregard stories that are hard to
believe.’ Nonetheless, it remains the ‘affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to trial.’” Id. at *5 n.3
(citations omitted). Here, the lack of a genuine issue of material fact regarding whether

conversation in which he participated is insufficient” to survive summary judgment).
3

Plaintiff filed his surreply on August 20, 2012, more than eight months after the
close of discovery. He has had every opportunity to submit evidence that might support
his claim.
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the expeditor is a “front of the house” position entitles MLL to summary judgment on
plaintiff’s claims based on allegations of impermissible tip sharing.4
As noted above, plaintiff has filed a motion seeking class certification of his state
law claims [Docket No. 43]. Plaintiff contends that the “commonality” requirement of
class certification is met because the “‘common nucleus’ presented . . . is whether
[MLL] improperly diverted tips to its expeditor.” Docket No. 43 at 9. Because MLL is
entitled to summary judgment on plaintiff’s claims relating to sharing tips with the
expeditor position, the Court will deny plaintiff’s motion for class certification as moot
Plaintiff also contends that Ms. Wollett was a manager and thus not permitted to
take part in the tip sharing arrangement regardless of her position in the restaurant.
Pursuant to the FLSA, an “employer” includes “any person acting directly or indirectly in
the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d) (emphasis
added). While plaintiff points out that Ms. Wollett acted as the head of MLL’s
housekeeping department during the day, he identifies no evidence that Ms. Wollett
exercised any managerial duties in relation to him. Applying the “economic reality test”
for determining whether somebody is an “employer,” the Court identifies no evidence

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The Court notes that interaction with customers is not necessarily the sine qua
non of the analysis. Although plaintiff contends that the expeditor assisted kitchen staff,
he provides no evidence that the tasks he identifies would not otherwise be done by
servers. Cf. Turner v. Millennium Park Joint Venture, LLC, 767 F. Supp. 2d 951, 95455 (N.D. Ill. 2011) (“So in real world terms it is readily understandable that employees
receiving tips directly from customers may agree to share tips when they believe that
the employees with whom they share help them to serve the customers better and more
fully and thus to obtain additional tips and sweeten the pot for everyone. Just so with a
silverware roller, who performs work that would otherwise be a waitperson function.”).
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supporting plaintiff’s claim that he was required to share tips with his “employer.”5 The
Court therefore will grant MLL summary judgment on this ground as well.
B. Notice of the Tip Credit
As noted above, MLL could only take a tip credit toward plaintiff’s minimum wage
if it had informed plaintiff “of the requirements of the law regarding minimum wages and
of the employer’s intention to take the tip credit.” Koellhoffer, 2012 WL 846670, at *8.
While plaintiff admits that the MLL tip sharing policy was discussed with him when he
began working for MLL, see Docket No. 92 at 4, ¶ 23, he denies being told by his
supervisors that MLL would take a tip credit.6 The undisputed record evidence
indicates, however, that he was informed of the tip credit.
MLL contends that, since 2007, it has displayed posters at the Wait Station of
5

“The economic reality test includes inquiries into whether the alleged employer
has the power to hire and fire employees, supervises and controls employee work
schedules or conditions of employment, determines the rate and method of payment,
and maintains employment records.” Baker v. Flint Eng’g & Const. Co., 137 F.3d 1436,
1440 (10th Cir. 1998) (citing Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990)).
Plaintiff does not supply any evidence that Ms. Wollett had any of these powers in
relation to him or others at MLL’s restaurant. Rather, he relies on speculation that, if he
was disrespectful of her, Ms. Wollett could exert influence on persons holding
managerial positions over plaintiff to have him disciplined. See Docket No. 143-1 at 3,
¶ 5. And while he originally declared that she sat on an “Executive Committee,” he
appears to have abandoned that contention after MLL submitted second affidavit of
Vicki Parrish, who avers that MLL has not had an Executive Committee at any of the
relevant times. See Docket No. 94-5 at 3, ¶ 3.
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MLL has supplied evidence indicating that, “[b]efore a server begins work, a
[MLL] restaurant manager describes the tip sharing policy to them, and the managers
and servers typically have other discussions regarding the policy throughout the course
of the server’s employment.” Docket No. 64-3 at 3, ¶ 9. She further avers that the
“tipping policy was explained to [plaintiff] when he began work in the [MLL] restaurant.”
Docket No. 64-3 at 3, ¶ 10; see Docket No. 94-1 (Smit-Inman Aff.) at 3, ¶ 2. Plaintiff’s
declarations raise a dispute regarding whether a manager ever discussed the tip credit
with him.
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the restaurant issued by the Colorado Department of Labor and Employment indicating
the applicable minimum wage, Docket No. 94 at 2, including that for “tipped employees”
subject to a tip credit. See Docket No. 94–7 at 1 (indicating a minimum wage of $4.00
effective January 1, 2008 for “tipped employee” subject to tip credit);7 see also Docket
No. 94-1 (Smit-Inman Aff.) at 3, ¶ 3 (“I personally post a copy of the Colorado Minimum
Wage Order Poster for the relevant year in the Main Office and at the Wait Station in
the restaurant every year since 2007.”). Although plaintiff contends that he was not
specifically told that he would be paid a lower hourly wage than the applicable minimum
wage in light of his receipt of tips, the poster outlines the minimum wage for tipped
employees. Plaintiff does not dispute that this poster was displayed at the Wait Station
nor does he contend that he never read it.8 See Koellhoffer, 2012 WL 846670, at *8
(finding notice sufficient in part because plaintiff did “not dispute the fact that
Defendants complied with the requirement of the State of Colorado of posting of certain
information in the form of ‘Minimum Wage Order Posters’, and that these posters at the
workplace contained the information about the tip credit.”); see also Davis v. B & S,
Inc., 38 F. Supp. 2d 707, 719 (N.D. Ind. 1998) (“[A]n employer may meet the notice
requirement simply by providing conforming written materials to its employees. This
holding is supported by dicta from other decisions indicating that an employer can
satisfactorily convey notice of the tip credit by way of a poster, if the content of the

7

Plaintiff contends that he never saw the portion of a personnel form cited that
indicates his hourly wage as of August 16, 2008 was “$4.00 + tips,” but he does not
contend that MLL failed to otherwise inform him of his hourly rate.
8

Plaintiff does dispute that MLL’s internal tip sharing policy, see Docket No. 94-6
at 3, was posted at the time of his employment. See Docket No. 92 at 4, ¶ 23.
10

poster is otherwise sufficient and it is prominently displayed.”). Plaintiff avoids the
question of whether, via the poster, MLL supplied him with adequate information
regarding the tip credit. However, his failure to dispute the facts regarding the display
of the poster do not allow him to survive summary judgment. Cf. Kilgore v. Outback
Steakhouse of Florida, Inc., 160 F.3d 294, 298 (6th Cir. 1998) (“As to how the employer
may deliver that information to the employee, we conclude that an employer must
provide notice to the employees, but need not necessarily ‘explain’ the tip credit as
argued by the plaintiffs. The statute requires that the employee be ‘informed’ of the tip
credit.”).
C. Remaining Claims
After the present motion for summary judgment was filed, plaintiff filed an
amended complaint asserting an FLSA claim based on an alleged failure of MLL to pay
him overtime and reasserted a breach of contract claim. These claims are the subject
of MLL’s since-filed motion to dismiss plaintiff’s amended complaint [Docket No. 121],
which the Court will address in due course.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that MLL’s motion for summary judgment [Docket No. 64] is
GRANTED. It is further
ORDERED that MLL is entitled to summary judgment on plaintiff’s claims relating
to the tip sharing requirements and notice of the tip credit. Plaintiff’s overtime and
breach of contract claims survive. It is further

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ORDERED that plaintiff’s motion for class certification of his state law claims
[Docket No. 43] is DENIED as moot.

DATED September 28, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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